general and commercial laws study i constitution of india . broad f

Executive Short Notes – General and Commercial Laws. 

ICSI eLearning Coaching Program 

GENERAL AND COMMERCIAL LAWS 

STUDY I 

CONSTITUTION OF INDIA 

. BROAD FRAMEWORK OF THE CONSTITUTION 

Preamble we are sovereign, socialist , secular re-public democracy (no king) 

Federal in structure with unitary feature. Federal means two sets of Government 

Union and State. 

Peculiar Features of Indian Federalism 

o (1) The Mode of Formation states formed form total territory 

o (2) States were not independent 

o (3) The legislative power is divided in three list List I Union List, List II State 

List , List III Concurrent list both Union and State legislatures can pass laws. 

Residuary Power vests with union. Law passed by union will prevail in the 

event of conflict in laws passed on the subject in concurrent list 

FUNDAMENTAL RIGHTS 

Any democratic Government must grant some rights to citizens to ensure that 

democracy succeeds. 

Most important among them is the treatment of all individuals as equals. 

Right to equality is enshrined in Articles 14 to 18 

Article 12 defines state to include Central Government, State Government and also 

local self Governments and even Government corporations If the functions of the 

corporation are of public importance and closely related to government functions. 

Article 13 declares fundamental rights can be challenged. justice . Laws inconsistent 

with or in derogation of the Fundamental Rights are void and struck down by the 

Courts. Doctrine of Severability. If the portion law which is violative of fundamental 

rights can be separated then that portion will be void and rest of the law can be 

implemented. A law made before the commencement of the Constitution remains 

eclipsed or dormant to the extent it comes under the shadow of the fundamental 

rights. A law made before the commencement of the Constitution remains eclipsed or 

dormant to the extent it comes under the shadow of the fundamental rights, 

One thing to be noted in Article 13 is that, it is not the entire law which is affected by 

the provisions in Part III, but on the other hand, the law becomes invalid only to the 

extent to which it is inconsistent with the Fundamental Rights 

Article 14 of the Constitution says that “the State shall not deny to any person 

equality before the law or the equal protection of the laws within the territory of India 

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Doctrine of equality does not prevent the state from making reasonable classification. 

Any classification made by the Government will be considered to be reasonable. The 

onus of proof is on the person who claims it to be unreasonable. 

Article 15: Prohibits discrimination on grounds of religion, race. caste, sex. Pace 

birth or any of them. This is not only available against the state but also against the 

persons manning public places of entertainment , gardens, restaurants. 

Article 16 deals with equality in matter of public employment. 

By Article 17 “Untouchability” is abolished and its practice in any form is forbidden. 

Article 18 abolishes titles. One time recognition like Bharat Ratna or Padma awards 

not prohibited. 

Article 19 grants six freedoms viz, (a) Right to freedom of speech and expression, (b) 

Freedom of assembly, (c) Freedom of association, (d) Freedom of movement,(e) Freedom 

of residence(g) Freedom to trade and occupations 

These freedoms are highly important for the functioning of parliamentary democracy 

which is rule by majority with full freedoms and facilities to minority to convert itself in 

majority. These are not unrestricted. 

(a) The restriction can be imposed by law and not by a purely executive order issued 

under a statute; 

(b) The restriction must be reasonable; 

(c) The restriction must be imposed for achieving one or more of the objects specified in 

the respective clauses of Article 19. 

Article 20 guarantees to all persons — whether citizens or non-citizens-three rights— 

(i) Protection against ex-post facto laws 

(ii) Protection against double jeopardy 

(iii) Protection against self-incrimination 

Article 21 confers on every person the fundamental right to life and personal 

liberty 

Article 21 does not impose a limitation on the legislature in so far as the 

deprivation of life or personaly liberty is concerned, yet a legislative Act 

providing for such deprivation is subject to the procedureal safeguards 

provided in Article 22 

Article 22 (amended by the 44th Constitution Amendment Act, 1978) 1 contains 

following safeguards against preventive detention: 

(a) such a person cannot be detained for a longer period than three months 

1 . The changes proposed by the Constitution (Forty-fourth Amendment), Act, 1978 have not been notified as yet. 



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unless: 

(i) An Advisory Board constituted of persons who are or have been or are 

qualified to be High Court judges has reported, before the expiration of the said 

period of three months that there is, in its opinion sufficient cause for such detention. 

(ii) Parliament may be law prescribe the maximum period for which any person 

may in any class or classes of cases be detained under any law providing for 

preventive detention and the procedure to be followed by an Advisory Board. 

(b) The authority ordering the detention of a person under the preventive 

detention law shall: 

(i) communicate to him, as soon as may be, the grounds on which the order for 

his detention has been made, and 

(ii) afford him the earliest opportunity of making the representation against the 

order. 

Right against Exploitation 

Article 23 imposes a complete ban on traffic in human beings, feudal and 

other similar forms of forced labour 

Article 24 prohibits the employment of children below the age of fourteen in 

any factory or mine 

Article 25 gives to every person the: 

(i) freedom of conscience, and 

(ii) the right freely to profess, practice and propagate religion. 

But this freedom is subject to restrictions imposed by the State on the following grounds: 

(i) public order, morality and health, 

(ii) other provisions in Part III of the Constitution, 

(iii) any law regulating or restricting any economic, financial political or 

other secular activity which may be associated with religious practice, and 

(iv) any law providing for social welfare and reform or the throwing open of 

Hindu religious institutions of a public character to all classes and sections of Hindus. 

Article 26, it grants to every religious denomination or any sect thereof the right— 

(i) to establish and maintain institutions of religious and charitable purposes; 

(ii) to manage its own affairs in matters of religion; 

(iii) to own and acquire movable and immovable property; and 

(iv) to administer such property in accordance with law. 

Article 27 grants Freedom as to payment of tax for the promotion of any 

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Article 28 Freedom as to attendance at religious instruction or religious worship in 

educational institutions 

Article 29 guarantees Protection of interests of Minorities 

Article 30 (i) says all minorities, whether based on religion or on language, shall 

have the right to establish and administer educational institutions of their 

choice(ii) The State cannot, in granting aid to educational institutions, 

discriminate against any educational institution on the ground that it is under the 

management of a minority. 

Right to property is no more a fundamental right 

. Article 300A reads — “No person shall be deprived of his property save by 

authority of law”. 

(a) If such a law is made by a State Legislature then it cannot be protected by the 

provisions of Article 31A unless such law having been reserved for the 

consideration of the President has received his assent, and 

(b) If the law provides for the acquisition of (i) any land within the ceiling 

 

limit applicable in that area, (ii) any building or structure standing thereon or 

apartment thereto, it (law) shall not be valid unless it provides for payment of 

compensation at a rate which shall not be less than the market value thereof. 

This provision, however, has been amended by the Constitution (29th 

Amendment) Act. 

Validation of certain Acts and Regulations 

Article 31B certain laws against attack on the ground of violation of any 

fundamental rights. The laws so protected are specified in the Nineth Schedule to 

the Constitution. These laws also relate mainly to land reforms. 

Article 31C Saves of Laws giving effect to certain Directive Principles 

Article 32 guarantees the enforcement of Fundamental Rights. It is remedial and 

not substantive in nature. 

The Supreme Court is empowered to issue directions or orders or writs in the 

nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, 

whichever may be appropriate for the enforcement of the right, the violation of 

which has been alleged. This power of the Supreme Court to issue directions, 

etc., may also be assigned to other Courts by Parliament without affecting the 

powers of the Supreme Court 

Article 33 authorises Parliament to restrict or abrogate the application of 

fundamental rights in relation to members of armed forces, para-military forces, 

police forces and analogous forces. 

Article 34 says that Parliament may by law indemnify any person in the service of 



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the Union or of State or any other person, for an act done during martial law. 

Article 35 provide that wherever parliament has by an express provision been 

empowered to make a law restricting a fundamental right Parliament alone can 

do so, (and not the state legislature). 

Directive Principles lay down the ideals to be observed by every Government to 

bring about an economic democracy in the country. 

No legal action is possible for not implementing directive principles 

Ordinance making power of President Article 123 

(i) this power is to be exercised by the President on the advice of his Council of 

Ministers. 

(ii) the Ordinance must be laid before Parliament when it re-assembles, and shall 

automatically cease to have effect at the expiration of 6 weeks from the date of 

re-assembly or before resolutions have been passed disapproving the Ordinance. 

(iii) the Ordinance-making power will be available to the President only when both 

the Houses of Parliament have been prorogued or is otherwise not in session, so 

that it is not possible to have a law enacted by Parliament. However, Ordinance 

can be made even if only one House is in Session, when law cannot be made by 

that House in session alone. The President’s Ordinance making power under the 

Constitution is not a co-ordinate or parallel power of legislation along with 

Legislature. 

Governors Ordinance making power Article 213 

The Governor’s power Article 213 is similar to the Ordinance making power of the 

President and have the force of an Act of the State Legislature 

While exercising this power Governor must act with the aid and advise of the 

Council of Ministers. But in following cases the Governor cannot promulgate any 

Ordinance without instructions from the President: 

(a) if a Bill containing the same provisions would under this constitution 

have required the previous section of the President. 

(b) he would have deemed it necessary to reserve a Bill containing the 

same provisions for the consideration of the President. 

(c) an Act of the state legislature containing the same provisions would 

under this constitution have been invalid under having been reserved for the 

consideration of the President, it had received the assent of the President. 

Ordinance shall automatically cease to have effect at the expiration of six weeks 

from the date of the re-assembly unless disapproved earlier by that legislature. 

Territorial Distribution 

The Union Legislature, i.e., Parliament has the power to make laws for the whole 



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of the territory of India or any part thereof, and the State Legislatures have the 

power to make laws for the whole or any part of the territory of the respective 

States 

State Legislature can also make laws which may extend beyond the territory of 

that State which two conditions, must be fulfilled: (i) the connection must be real 

and not illusory; and (ii) the liability sought to be imposed by that law must be 

pertinent to that connection. 

Distribution of Subject Matter of Legislation. List I is named as the Union List. 

List II as the State List and III as the Concurrent List. The number of entries in the 

respective lists is 97, 66 and 47. 

Notable points with respect to these lists, e.g.: 

(i) The entries relating to tax have been separated from other subjects and thus if a 

subject is included in any particular List it does not mean the power to impose tax 

with respect to that also follows. Apart from that, while other subjects are in the first 

part of the List in one group, the subjects relating to tax are given towards the end of 

the List. 

(ii) . There is no tax subject included in the Concurrent List. 

(iii) In each List there is an entry of “fees” with respect to any matter included in that List 

excluding court fee. This entry is the last in all the Lists except List I where it is last 

but one. 

(iv) There is an entry each in Lists I and II relating to “offences against laws with respect 

to any of the matters” included in the respective List while criminal law is a general subject in 

the Concurrent List 

Power of Parliament to make Laws on State List 

(a) In the National Interest (Article 249) 

(b) During a proclamation of emergency (Article 250) 

(c) Breakdown of Constitutional Machinery in a State (Article 356 and 357) 

(d) On the request of two or more States (Article 252) 

(e) Legislation for enforcing international agreements (Article 253) 

Interpretation of the Legislative Lists 

(a) Plenary Powers 

(b) Harmonious Construction 

(c) Pith and Substance Rule 

(d) Colourable Legislation 

DELEGATED LEGISLATION 

1. Executive Legislation rules made under the act. 



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2. Judicial Legislation rules made by the court 

3. Municipal Legislation rules made by local self governments 

4. Autonomous Legislation rules made by autonomous bodies like ICSI,universities 



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STUDY II 

INTERPRETATION OF STATUTES 

A statute is “the written will of the legislature”. Legislature knows the will of the 

people 

Interpretation or construction is the process by which the Court’s seek to ascertain 

the exact will of the legislature 

(i) Primary Rules 

(a) The Primary Rule : Literal Construction the words, phrases and sentences of a 

statute are ordinarily to be understood in their natural, ordinary sense. No words to 

be discarded as surplus. No words to be added. 

(b) The Mischief Rule or Heydon’s Rule. Law is enacted to prevent some 

mischief.Court tries to find what was the mischief taking place before the law was 

enacted and how legislature prevented it. 

(c) Rule of Reasonable Construction i.e. Ut Res Magis Valeat Quam Pareat 

If the Court considers that the litera legis is not clear, it, must interpret according to the 

purpose, policy or spirit of the statute (ratio-legis). It is, thus, evident that no invariable 

rule can be established for literal interpretation. 

(d) Rule of Harmonious Construction. Where in an enactment, there are two 

provisions which cannot be reconciled with each other, they should be so interpreted 

that, if possible, effect may be given to both. 

(e) Rule of Ejusdem Generis: 

the ejusdem generis rule is that, where there are general words following particular 

and specific words, the general words following particular and specific words must be 

confined to things of the same kind as those specified, unless there is a clear 

manifestation of a contrary purpose. 

ii) Other Rules of Interpretation 

(a) Expressio Unis Est Exclusio Alterius 

The rule means that express mention of one thing implies the exclusion of another 

(b) Contemporanea Expositio Est Optima Et Fortissima in Lege 

The maxim means that a contemporaneous exposition is the best and strongest in 

law 

(c) Noscitur a Sociis: 

Meaning of a word should be known from its accompanying or associating words 

The same words bear the same meaning in the same statute 

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INTERNAL AND EXTERNAL AIDS IN INTERPRETATION 

a) Internal Aids in Interpretation 

All internal aids are only helpful so long as they are not contrary to main text. 

Title 

The long title of an Act is a part of the Act and is admissible as an aid to its 

construction. The long title sets out in general terms, the purpose of the Act and it 

often precedes the preamble 

Preamble 

The preamble may be legitimately consulted in case any ambiguity arises in the 

construction of an Act and it may be useful to fix the meaning of words used so as to 

keep the effect of the statute within its real scope. 

Heading and Title of a Chapter 

Marginal Notes some clue as to the meaning and purpose 

Definitions” of certain words and expressions used elsewhere in the body of the 

statute. 

Proviso. The proper function of a proviso is to except and to deal with a case which 

would otherwise fall within the general language of the main enactment, and its effect 

is confined to the case 

Illustrations attached to sections are part of the statute and they are useful so far as 

they help to furnish same indication of the presumable intention of the legislature. An 

explanation is at times appended to a section to explain the meaning of words 

contained in the section. It becomes a part and parcel of the enactment. 

The schedules form a part of the statute and must be read together with it for all 

purposes of construction 

The statement of objects and reasons as well as the ‘notes on clauses of the Bill 

relating to any particular legislation. These are helpful in applying mischief rule of 

interpretation. 

(b) External Aids in Interpretation 

Parliamentary History and Reference to Reports of Committees help in knowing what 

mischief parliament wanted to prevent, 

Reference to other Statutes helps to what is the general scheme of law. 

Dictionaries help in understanding the ordinary meaning of the word. Use of foreign 

decisions of countries following the same system of jurisprudence as ours and rendered on 



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statutes in pari materia has been permitted by practice in Indian Court 



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STUDY III 

LAW RELATING TO SPECIFIC RELIEF, ARBITRATION AND CONCILIATION, TORTS, 

LIMITATION AND EVIDENCE 

Section 5, a person, entitled to the possession of specific immovable property may recover 

the same in the manner provided by the Code of Civil Procedure, 1908 

Recovery of possession of dispossessed immovable property. Section 6 provides if any 

person is dispossessed without his consent, of immovable property otherwise than in 

due course of Law, he or any person claiming through him may by suit recover 

possession thereof, notwithstanding any other title that may be set up in such a suit. There 

are two restrictions; no suit under Section 6 shall be brought (i) after the expiry of 6 

months from the date of dispossession, or (ii) against the Government. Under Sub-section 

(3) no appeal or review is allowed of any order of decree passed under this Section. A 

person can file a suit to establish his title to such property and recover possession thereof. 

A person is entitled to recover the possession of specific moveable property in the 

manner provided by the Code of Civil Procedure, 1908. (Section 7) A trustee is legal owner, 

Recovery of possession of specific moveable property by a person other than owner 

(a) When the thing claimed is held by the defendant as the agent or trustee of the 

plaintiff, (b) when the compensation in money would not afford the plaintiff adequate 

relief for the loss of the thing claimed, (c) when it would be extremely difficult to ascertain 

the actual damage caused by its loss, (d) when the possession of the thing claimed has 

been wrongfully transferred from the plaintiff. The moveable property should not be goods 

of ordinary commercium 

Specific performance of contact 

Sec. 9 contracts which are not valid under contracts Act can not be specifically enforced’ 

Sec. 10 specific performance of any contract may, in the discretion of the Court, be 

enforced (a) when there exists no standard for ascertaining the actual damage caused 

by the non-performance of the act agreed to be done, or (b) when the act agreed to be done 

is such that compensation in money for its non-performance would not afford adequate 

relief 

Specific performance of contracts connected with trusts enforceable. S.11. 

Specific performance of part of contract possible. Section 14 lays down the contracts which 

cannot be specifically enforced. They are (a) A contract for the non-performance of which 

compensation in money is an adequate relief; (b) A contract which runs into such minute and 

numerous details that the Court cannot enforce specific performance of its material terms or 

which is dependant upon the personal qualification or volition of the parties or a contract 

from its nature is such that the Court cannot enforce specific performance; (c) A contract 

which is in its nature determinable; (d) A contract, the performance of which involves the 

performance of a continuous duty which the court cannot supervise. 

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Section 20 says that relief by way of specific performance is discretionary. It will enquire into 

the conduct of plaintiff. No relief will be granted if it would give unconscionable benefit to 

plaintiff or when it will give unconscionable burden on the defendant. 

PREVENTIVE RELIEFS 

An injunction is a specific order of the Court forbidding the commission of a wrong 

threatened or the continuance of a wrongful course of action already begun, or in some 

cases 

Temporary and perpetual injunctions. Temporary injunction is granted to maintain status 

quo ante. 

Temporary injunctions are such as are to continue until a specified time, or until the 

further order of the Court and they may be granted at any stage of a suit, and are regulated 

by the Code of Civil Procedure, 1908. 

A perpetual injunction can only be granted by the decree made at the hearing and upon the 

merits of the suit; the defendant is thereby perpetually enjoined from the assertion of right, or 

from the commission of an act,which is against the interests of the plaintiff 

Specific performance is decreed to compel the performance of an active duty, while injunction 

is decreed to prevent the violation of a negative duty. 

A perpetual injunction cannot be granted (a) to restrain any person from prosecuting a 

judicial proceeding pending at the institution of the suit in which the injunction is sought, 

unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to restrain any 

person from instituting or prosecuting any proceeding in a Court not subordinate to that from 

which the injunction is sought; (c) to restrain any person from applying to any legislative 

body; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal 

matter; (e) to prevent the breach of a contract the performance of which would not be 

specifically enforced; (f) to prevent on the ground of nuisance, an act of which it is not 

reasonably clear that it will be nuisance; (g) to prevent a continuing breach in which the 

plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained by any 

other usual mode of proceeding except in case of breach of trust; (i) when the conduct of the 

plaintiff or his agents has been such as to disentitle him to the assistance of the Court; (j) 

when the plaintiff has no interest in the matter. 

LAW RELATING TO ARBITRATION AND CONCILIATION 

Arbitration Agreement is an agreement by parties to submit the arbitration certain 

disputes which have arisen or which may arise between them in respect of a defined legal 

relationship whether contractual or not. An arbitration agreement may be in the form of an 

arbitration clause or in the form of a separate agreement. It shall be in writing. In the form of 

(a)a document signed by the parties, or 

(b) an exchange of letters, telex, telegrams or other means of telecommuni-cation, which 

provide a record of the agreement, or 

(c)an exchange of statements of claim and defence in which the existence of the 

agreement is alleged by one party and not denied by the other. 



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Parties can agree to any procedure for appointment of arbitrators 

(i) Arbitrator could be of any nationality. [Section 11(1)] 

(ii) In case of an arbitration with three arbitrators, each party shall appoint its own 

arbitrator, and the two appointed arbitrators shall appoint a third arbitrator, who 

shall be the presiding arbitrator [Section 11(3)]. 

(iii) If, within 30 days, the parties fail to appoint their arbitrators, or the arbitrators fail 

to appoint the third arbitrator, the arbitrator shall be appointed by the Chief 

Justice or a person institution designated by him at the request of a party. 

[Section 11(4)] 

(iv) Similar procedure is also applicable for appointment of a sole arbitrator. If parties 

fail to agree on the appointment of a sole arbitrator within 30 days, the 

appointment shall be done by the Chief Justice or a person/institution designated 

by him. 

(b) Similar procedure also applies, when the procedure agreed by the parties is not 

acted upon in time. [Section 11(6)] 

(c) Decision on appointment of arbitrators by the Chief Justice or persons/ institution 

designated by him, is final [Section 11(7)]. 

(d) Chief Justice or the persons/Institution designated by him would have due regard to 

qualifications of arbitrators agreed between the parties, and considerations likely to 

secure an independent and impartial arbitrator. [Section 11(8)] 

(e) In case of appointment of a sole or third arbitrator in an international commercial 

arbitration, the Chief Justice of India or a person/Institution designed by him, may 

appoint a person of a nationality, other than that of the parties, where the parties are 

of different nationalities. [Section 11(9)] 

(f) The Chief Justice can make any Scheme, he considers appropriate for appointment 

of arbitrator 

The parties are free to determine the number of arbitrators, provided that such number 

shall not be an even number. If they fail to determine the number of arbitrators, the arbitral 

tribunal shall consist of a sole arbitrator. 

Challenge procedure 

The parties are free to agree on a procedure for challenging an arbitrator. if a 

challenge under any procedure agreed upon by the parties or under the procedure under 

Sub-section is not successful, the arbitral tribunal shall continue the arbitral proceedings 

and make an arbitral award. But at that stage, the challenging party has the right to make an 

application in the Court to set aside the award in accordance with Section 34 of the Act. 

Section 34, stipulates the following grounds 

(i) incapacity of a party; 

(ii) invalidity of the arbitration agreement; 



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(iii) party applying was not given proper notice of the apointement of the arbitrator or of 

the arbitral proceedings or was otherwise unable to present his case; 

(iv) award not in accordance with the terms of submission to arbitration in regard to the 

dispute; 

(v) arbitral tribunal not properly constituted or the arbitral procedure was not in 

accordance with the agreement of the parties; 

(vi) subject matter of the dispute not capable of settlement by arbitration under the law 

for the time being in force; 

(vii) award being in conflict with ‘the public policy of India’ 

Conciliation is an informal process in which the conciliator (the third party) tries to bring 

the disputants to agreement. 

The settlement agreement shall have the same status and effect as if it is an arbitral 

award on agreed terms on the substance of the dispute rendered by an arbitral tribunal 

under Section 30. (Section 74) 

The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial 

proceedings in respect of a dispute that is the subject matter of the conciliation proceedings 

except that a party may initiate arbitral or judicial proceedings where, in his opinion, such 

proceedings are necessary for preserving his rihall not initiate, during the conciliation 

proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject 

matter of the conciliation proceedings except that a party may initiate arbitral or judicial 

proceedings where, in his opinion, such proceedings are necessary for preserving his rights. 

Conciliator to decide the costs. 

LAW RELATING TO torts 

Tort is a civil wrong not arising out of breach of trust or breach of contract. 

Tort is (i) a wrongful act or omission of the defendant; 

(ii) the wrongful act must result in causing legal damage to another; and 

(iii) the wrongful act must be of such a nature as to give rise to a legal remedy. 

Damnum Sine Injuria 

Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria 

means infringement of a right conferred by law on the plaintiff. The maxim means that in a 

given case, a man may have suffered damage and yet have no action in tort, because the 

damage is not to an interest protected by the law of torts.Thus when loss is caused by 

competition it is not arising out of wrongfulact, Hence no tort. 

Injuria Sine Damnum 

It means injury without damage, i.e., where there is no damage resulted yet it is an injury 

or wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but 

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Tresspass. Wrongful dishonor of a cheque 

(iii) Legal remedy The third condition of liability for a tort is legal remedy. This means that to 

constitute a tort, the wrongful act must come under the law. The main remedy for a tort is an 

action for unliquidated damages 

Mens Rea 

How far a guilty mind of persons is required for liability for tort? Motive is relevant only in 

few cases but not necessary when law fixes strict liability 

VICARIOUS LIABILITY 

Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable 

for the tort committed by another. A master is vicariously liable for the tort of his servant, 

principal for the tort of his agent and partners for the tort of a partner. 

(1) Judicial Remedies 



REMEDIES IN TORTS 

Three types of judicial remedies are available to the plaintiff in an action for tort namely: 

(i) Damages, (ii) Injunction, and (iii) Specific Restitution of Property. 

Extra Judicial Remedies 

(a) Self Defence 

(b) Prevention of Trespass 

(c) Re-entry on Land 

(d) Re-caption of Goods 

(e) Abatement of Nuisance 

(f) Distress Damage Feasant 

LAW RELATING TO LIMITATION 

The Law of limitation bars the remedy in a Court of law only when the period of limitation has 

expired, but it does not extinguish the right that it cannot be enforced by judicial process 

Section 3 of the Act provides that any suit, appeal or application if made beyond the 

prescribed period of limitation, it is the duty of the Court not to proceed with such suits 

irrespective of the fact whether the plea of limitation has been set up in defence or not. 

EXTENSION OF TIME IN CERTAIN CASES 

1.Wrong practice of High Court which misled the appellant or his counsel in not filing the 

appeal should be regarded as sufficient cause under Section 5; 

2. Mistake of counsel may be taken into consideration in condonation of delay. But such 

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mistake must be bona fide; 

3. Wrong advice given by advocate can give rise to sufficient cause in certain cases; 

4. Mistake of law in establishing or exercising the right given by law may be considered 

as sufficient cause. However, ignorance of law is not excuse, nor the negligence of 

the party or the legal adviser constitutes a sufficient cause; 

5. Imprisonment of the party or serious illness of the party may be considered for 

condonation of delay; 

6. Time taken for obtaining certified copies of the decree of the judgment necessary to 

accompany the appeal or application was considered for condoning the delay. 

7. Non-availability of the file of the case to the State counsel or Panel lawyer is no 

ground for condonation of inordinate delay (Collector and Authorised Chief 

Settlement Commissioner v. Darshan Singh and others, AIR 1999 Raj. 84). 

8. Ailment of father during which period the defendant was looking after him has been 

held to be a sufficient and genuine cause (Mahendra Yadav v. Ratna Devi & others, AIR 

2006 (NOC) 339 Pat 

Continuous running of time. 

“Time when once it has commenced to run in any case will not cease to be so by reason 

of any subsequent event”. Thus, when any of the statutes of limitation is begun to run, no 

subsequent disability or inability will stop this running. 

COMPUTATION OF PERIOD OF LIMITATION 

(i) Exclusion of certain days or exclusion of time in legal proceedings 

The day which is to be excluded in computing period of limitation is the day from 

which the period of limitation is to be reckoned For counting the limitation period 

for appeal or review The day on which the judgment complained of was 

pronounced and the time requisite for obtaining a copy of the decree, sentence or 

order appealed from or sought to be revised or reviewed shall be excluded 

Computation of period for an application made for leave to appeal from a decree 

or order. The time requisite for obtaining a copy of the judgement shall also be 

excluded Computation of Limitation period for an application to set aside an 

award: The time required for obtaining a copy of the award shall be excluded 

Exclusion of time bona fide taken in a court without jurisdiction. 

Exclusion of time during which leave to sue or appeal as a pauper is applied for. 

Effect of Acknowledgement on the Period of Limitation a fresh period of limitation shall be 

computed from the time when the acknowledgement was signed. 

Where payment on account of a debt or of interest on a legacy is made before the expiration 

of the prescribed period by the person liable to pay the debt or legacy or by his agent duly 



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authorised in this behalf, a fresh period of limitation shall be computed from the time when 

the payment was made. 

The Indian Evidence Act, 1872 

“Evidence” means and includes: 

(1) all statements which the Court permits or requires to be made before it by witnesses, 

in relation to matters of fact under inquiry; such statements are called oral evidence; 

(2) all documents (including electronic records) produced for the inspection of the Court; 

such documents are called documentary evidence. 

A fact is said to be logically relevant to another when it bears such casual relation with the 

other as to render probably the existence or non-existence of the latter. All facts logically 

relevant are not, however, legally relevant 

Facts in issue are decided when issues are framed in a civil case and in criminal 

proceedings when charge is framed. 

Two fundamental rules on which the law of evidence is based are: (a) no facts other than 

those having rational probative value should be admitted in evidence and, (b) all facts having 

rational probative value are admissible in evidence unless excluded by a positive rule of 

paramount importance. 

The principle of law embodied in Sec.6 of the Evidence Act is known as the rule of ‘res 

gestae’ recognized in English law. The essence of the doctrine is that a fact which, though 

not in issue, is so connected with the fact in issue “as to form part of the same transaction” 

becomes relevant by itself. This rule is, roughly speaking an exception to the general rule 

that hearsay evidence is not admissible. The rationale in making certain statement on fact 

admissible under S.6 of the Evidence Act is on account of the spontaneity and immediately 

of such statement or fact in relation to the fact in issue. But, it is necessary that such fact or 

statement must be part of the same transaction. In other words, such statement must have 

been made contemporaneous with the acts which constitute the offence or at least 

immediately thereafter. But if there was an interval, however slight it may be, which was 

sufficient enough for fabrication then the statement is not part of res gestae. 

Admissions 

An admission is defined in Section 17 as a statement, oral or documentary or contained in 

electronic form which suggests any inference as to any fact in issue or relevant fact, and 

which is made by any of the persons. 

Confessions 

Every confession must be an admission but every admission may not amount to a 

confession. Sections 27 to 30 deal with confessions which the Court will take into account. A 

confession is relevant as an admission unless it is made: 

(i) to a person in authority in consequence of some inducement, threat or promise held 



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out by him in reference to the charge against the accused; 

(ii) to a Police Officer; or 

(iii) to any one at a time when the accused is in the custody of a Police Officer and no 

Magistrate is present. 

Thus, a statement made by an accused person if it is an admission, is admissible in 

evidence. The confession is evidence only against its maker and against another person 

who is being jointly tried with him for an offence. 



FACTS OF WHICH EVIDENCE CANNOT BE GIVEN 

No one shall be permitted to give any evidence derived from unpublished official records 

relating to any affairs of State, except with the permission of the officer at the head of the 

department concerned, who shall give or withhold such permission as he thinks fit. The 

professional communications between a legal adviser and a client, which are protected from 

disclosure 

PRESUMPTIONS 

A presumption is a rule of law that courts or juries shall or may draw a particular inference 

from a particular fact or from particular evidence unless and untill the truth of such 

inference is disproved 

ESTOPPEL 

The general rule of estoppel is when one person has by his declaration, act or omission, 

intentionally caused or permitted another person to believe a thing to be true and to act upon 

such belief, neither he nor his representative shall be allowed, in any suit or proceeding 

between himself and such person or his representative to deny the truth of that thing. 

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STUDY IV 

LAW RELATING TO TRANSFER OF PROPERTY 

"Immoveable property" means land, benefits to arise out of land, and things attached to the 

earth, or permanently fastened to anything attached to the earth.It also 

(a) right to collect rents of immoveable property; 

(b) hereditary offices; 

(c) right to collect lac from trees; 

(d) a right of ferry; 

(e) a right of fishery; 

(f) reversion in property leased; 

Section 5 of the Transfer of Property Act, the term “transfer of property” means an act by 

which a living person conveys property in present, or in future, to one or more other living 

persons A company is a juristic person. 

A transfer of property not in existence operates as a contract to be performed in future which 

may be specially enforced as soon as the property comes into existence, 

Section 7 .Every person who is competent to contract and entitled to transferable property, 

or authorised to dispose of property is competent to transfer such property 

Right to property includes right of its transfer. 

Execution consists in affixing his signature to the document to the effect that he is 

transferring the property. An illiterate person who cannot write may direct some literate 

person to sign it on his behalf and in his presence and the illiterate person may put his 

thumb impression. Attestation, in relation to a document, signifies the fact of authentication 

of the signature of the executant of that document by the attestator by putting down his own 

signature on the document in testimony of the fact of its execution 

Registration is an essential legal formality to effect a valid transfer. 

Section 10 of the Act says that when property is transferred, the transferee should not be 

restrained absolutely from alienating the property. In the case of a lease, the lessor can 

impose a condition that the lessee shall not sublet the property or sell his leasehold interest 

Partial restraint valid. 

The transferor should not impose conditions as to how and in what manner the transferee 

should enjoy the property. Section 11 

If a property is given to an unborn person, two conditions should be satisfied: 

(i) it should be preceded by a life estate in favour of a living person, and 

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(ii) it should comprise the whole of the remaining interest of the transferor so that there 

can be no further interest in favour of others. 

Condition precedent means transfer will take place only when stipulated contingency takes 

place. Condition subsequent is a stipulation to be followed. 

Exceptions to the rule that no can transfer a better title than what he has 

Doctrine of election . If transferor transfers a property belonging to B and of the same deed 

transfers a gift to B. Then B has to elect to either accept the gift and ratify the transfer or 

reject both the gif and ratification of transfer. 



TRANSFER BY OSTENSIBLE OWNER 

(i)The transferor is the ostensible owner; 

(ii) he is so by the consent, express or implied, of the real owner; 

(iii) the transfer is for consideration, and 

(iv) the transferee has acted in good faith taking reasonable care to ascertain that the 

transferor had power to transfer. 

If any one of these elements is absent, the transferee is not entitled to the protection of 

this section. 

FEEDING THE GRANT BY ESTOPPEL 

Where, a person fraudulently or erroneously represents that he is authorised to transfer 

certain immoveable property and professes to transfer such property for consideration, such 

transfer shall, at the option of the transferee, operate on any interest which the transferor 

may acquire in such property at any time during which the contract of transfer subsists. 

(Section 43) 

Fraudulent transfers 

Every transfer of immoveable property made with intent to defeat or delay the creditors 

of the transferor shall be voidable at the option of any creditor so defeated or delayed 

. 

Doctrine of part-performance 

1. The transferee should have taken the possession of the property in part performance 

of the contract. In case he is already in possession, he must have continued in 

possession in part performance of the contract and must have done something in 

furtherance of the contract. 

2. The transferee must have fulfilled or ready to fulfill his part of the obligation under the 

contract. 

3. Terms of contract should be clear 

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Properties which cannot be transferred. 

All properties are transferable except some (which in fact are not properties) Sec. 6 

1.Mere chance of heir apparent to succeed to the property. Spes Successionis’ 

2. Mere Right of re-entry on the breach of conditions of a lease. 

3. Mere right of easement. 

4. An interest restricted in enjoyment to the owner personally 

5. Right to future maintenance 

6. Mere right to sue and actionable claim 

RULE AGAINST PERPETUITY 

Section 14 of the Act provides that no transfer of property can operate to create an interest 

which is to take effect after the life time of one or more persons living at the date of such 

transfer, and the minority of some person who shall be in existence at the expiration fo that 

period, and to whom, if he attains full age, the interest created is to belong 

Lis pendens 

Section 52 of the T.P. Act incorporates the doctrine of Lis pendens. It states that during the 

pendency of a suit in a Court of Law, property which is subject to a litigation cannot be 

transferred 

Sale is a transfer of ownership in exchange for a price paid or promised or part paid and 

part-promised. 

Exchange When two persons mutually transfer the ownership of one thing for the ownership 

of another 

“Gift" is the transfer of certain existing moveable or immoveable property made voluntarily 

and without consideration the donor, to the donee and accepted by or on behalf of 

the donee. 

Section 105, a "lease" of immoveable property is a transfer of a right to enjoy property 

Actionable Claims: Actionable claims are claims, to unsecured debts, 

"Mortgage" is the transfer of an interest in specific immoveable property for the purpose of 

securing the payment of money advanced or to be advanced by way of loan, an existing or 

future debt or the performance of an engagement which may give rise to pecuniary liability 

Kinds of mortgages: 

(a) Simple mortgage. 



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(b) Mortgage by conditional sale. 

(c) Usufractuary mortgage. 

(d) English mortgage. 

(e) Mortgage by deposit of title-deeds or equitable mortgage. 

(f) Anomalous mortgage 

"Charge" under Section 100 : “Where immoveable property of one person is by the act of 

parties or operation of law made security for the payment of money to another, and the 

transaction does not amount to a mortgage, the latter person has a charge on the property. 



Rights of mortgagor 

(a) Right of redemption Right against clog on equity of redemption 

(b) Right of partial redemption 

Rights of mortgagee and his remedies 

Remedies against the property: The remedies of the mortgagee against the property 

are: 

(i) Right to bring property to sale. 

(ii)Right to foreclose. 

(iii) Right to the possession of the property 

STUDY V 

LAW RELATING TO STAMPS 

Section 3 charges certain instruments to be liable to stamp duty. 

The provisions of Indian Stamp Act are applicable to bill of exchange, cheques, 

promissory notes, bill of lading, letters of credit, policies of insurance, transfer of shares, 

debentures, proxies and receipt 

No duty shall be chargeable in respect of: 

1. any instrument executed by or on behalf of or in favour of the Government, in cases 

where, but for this the Government would be liable to pay the duty chargeable in 

respect of such instrument. 

2. any instrument for the sale, transfer or disposition, either absolutely or by way of 

mortgage or otherwise, of any ship or vessel or any part, interest, share of property of 

or in any ship or vessel registered under the Merchant Shipping Act, 1894 or under 

Act XIX of 1838 or the Indian Registration of Ships Act, 1841 as amended by 

subsequent Acts. Or re enactment thereof. 

3.Any instrument executed by, or, on behalf of, or in favour of, the Developer or Unit or 

in connection with the carrying out of purposes of the special Economic Zone. 

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There may be cases where an instrument may come under several descriptions in 

Schedule-I to the Act. In such a circumstance, Section 6 of the Act provides that the 

instrument shall, where the duties chargeable thereunder are different, be chargeable only 

with the highest of such duties. Section 6 is subject to the provisions of Section 5. However, 

nothing in the Act shall render chargeable, with duty exceeding one rupee, a counter part or 

duplicate, of any instrument chargeable with duty, in respect of which the proper duty has 

been paid. 

Securities Dealt in Depository not liable to Stamp Duty 

Corporatisation and demutualisation schemes and related instruments not liable to duty 

VALUATION FOR DUTY UNDER THE ACT 

s. 20 where an instrument is chargeable with ad valorem duty in respect of any money 

expressed in any currency other than that of India, such duty shall be calculated on the value 

of such money in the currency of India, according to the current rate of exchange on the date 

of the instrument 

S 21 In the case of an instrument chargeable with ad valorem duty in respect of any stock or 

any marketable or other security, such duty shall be calculated on the value of such stock or 

security according to the average price or the value thereof on the date of the instrument. 

S. 22 If such price or value is mentioned in the instrument for the purpose of calculating duty, 

it shall be presumed (untill the contrary is proved) to be correct. 

S. 23where interest is expressly made payable by the terms of the instrument, such 

instrument shall not be chargeable with a duty higher than that with which it would have 

been chargeable, had no mention of interest been made therein. 

S,24 When the mortgaged property is sold to the mortgagee along with other properties, 

the stamp duty already paid is to be deducted from the duty payable on the deed of 

sale. In order to entitle the mortgagee to a deduction of the duties payable the entire 

property mortgaged should be transferred 



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There are two types of stamping, namely: 

(i) Adhesive stamping, and 

(ii) Impressed stamping. 

The following instruments may be stamped with adhesive stamps, namely – 

(a) instruments chargeable with a duty not exceeding 10 naya paisa except parts of bills 

of exchange payable otherwise than on demand and drawn in sets; 

(b) bills of exchange and promissory notes drawn or made out of India; 

(c) entry as an advocate, vakil or attorney on the roll of a High Court; 

(d) notarial acts; and 

(e) transfers by endorsement of shares in any incorporated company or other body 

corporate. 

Adhesive stamps must be pf appropriate description and value and must be cancelled to prevent 

reuse. 

Instruments executed inside India: Section 17 provides that all instruments 

chargeable with duty and executed by any person in India shall be stamped 

before or at the time of execution. 

Section 18, every instrument chargeable with duty executed only out of India and (not 

being a bill of exchange or promissory note) may be stamped within three months 

after it has been first received in India. Section 18(2) Where an instrument is brought 

to the Collector after the expiry of three months, the Collector may, instead of 

declining to stamp it, validate it under Sections 41 and 42 if he is satisfied that the 

omission to stamp in time was due to a reasonable cause. 

Any party who is in doubt as to the proper stamp to be affixed on an instrument but is 

nevertheless anxious to stamp the instrument. When the document or any draft of the 

document is produced to the Collector he shall determine the proper stamp duty on payment 

of a nominal fee. Collector has no power to impound such a document. His duty is only to 

adjudicate. 

Instruments not Duly Stamped – Treatment and Consequences 

Section 33 contains a mandate on certain officials to impound an instrument which is not 

duly stamped. Section 33(1) provides that every person having by law or consent of parties, 

authority to receive evidence and every person in charge of a public office, except an officer 

of police before whom any instrument, chargeable in his opinion, with duty is produced or comes in 

the performance of his functions, shall, if it appears to him that the instrument is not duly stamped, 

impound the same. 

Instruments not Duly Stamped Inadmissible in Evidence 



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Prosecutions for offences against the Stamp Law. This section provides that a levy of a 

penalty or payment thereof in respect of an unstamped or insufficiently stamped document. 



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STUDY VI 

LAW RELATING TO REGISTRATION OF DOCUMENTS 

DOCUMENTS WHOSE REGISTRATION IS COMPULSORY 

(a) Instruments of gift of immovable property 

(b) Other non-testamentary instruments (other than instruments of gift of immovable 

property) which purport or operate to create, declare, assign, limit or extinguish, 

whether in present or in future, any right, title of interest whether vested or 

contingent, of the value of one hundred rupees and upwards, to or in immovable 

property situated in a district in which this Act is in force. 

(c) Non‐testamentary instruments which acknowledge the receipt or payment of any 

consideration on account of the creation, declaration, assignment, limitation, or 

extinction of any such right, title or interest 

DOCUMENTS OF WHICH REGISTRATION IS OPTIONAL 

(a) instruments (other than instruments of gift and wills) which purport or operate to 

create, declare, assign, limit or extinguish, whether in present or in future, any right, 

title or interest whether vested or contingent, of value less than one hundred rupees, 

to or in immovable property; 

(b) instruments acknowledging the receipt or payment of any consideration on account 

of the creation, declaration, assignment; limitation or extinction of any such right, title 

or interest; 

(c) leases of immovable property for any term not exceeding one year and leases 

exempted under Section 17; 

(d) instruments transferring or assigning any decree or order of a court or any award 

when such decree or order or award purports or operates to create, declare, assign, 

limit or extinguish, whether in present or in future, any right, title or interest, whether 

vested or contingent of a value less than one hundred rupees, to or in immovable 

property; 

(e) instruments (other than wills) which purport or operate to create declare, assign, limit 

or extinguish any right, title or interest to or in movable property; 

(f) wills; and 

(g) other documents not required by Section 17 to be registered. (Section 18) 

TIME LIMIT FOR PRESENTATION 

A document other than a will must be presented within four months of its execution. In cases of 

urgent necessity, etc. the period is eight months, but higher fee has to be paid 

Documents relating to immovable property should be registered in the office of 

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Sub-Registrar of sub-district within which the whole or some portion of property is 

situated. Other documents can be registered in the office of Sub-Registrar. 

Where all persons executing the document desire it to be registered. Registrar 

can accept a document which is registrable with Sub-Registrar who is 

subordinate to him. Document should be presented for registration at the office of 

Registrar/Sub-Registrar. However, in special case, the officer may attend 

residence of any person to accept a document or will. 

All persons executing the document or their representatives, assign or agents 

holding power of attorney must appear before registering officer. They have to 

admit execution and sign the document in presence of Registrar, as required 

under Section 58(1)(a). Appearance may be simultaneous or at different times. If 

some of the persons are unable to appear within four months, further time upto 

additional four months can be given on payment of fine upto 10 times the proper 

registration fee. 

If the Registering Officer is satisfied about identity of persons and if they admit 

about execution of documents, and after registration fees are paid, the registering 

officer will register the document. He will make necessary entries in the Register 

maintained by him. 

After all formalities are complete, the Registering Officer will endorse the 

document with the word ‘Registered’, and sign the same. The endorsement will 

be copied in Register. After registration, the document will be returned to the 

person who presented the document. 

A document takes effect from its date of execution and not from date of registration. 

However, if the document states that it will be effective from a particular date, it will be 

effective from that date. 

Section 49 of the Act provides that no document required by Section 17 or by any provision of the 

Transfer of Property Act, 1882 to be registered shall: 

(a) affect any immovable property comprised therein; or 

(b) confer any power to adopt; or 

(c) be received as evidence of any transaction affecting such property or conferring such power 

unless it has been registered. 

Section 49 is mandatory, and a document which is required to be registered cannot be received in 

evidence as affecting immovable property. 

An unregistered document which comes within Section 17 cannot be used in any legal proceeding 

to bring out indirectly the effect which it would have if registered. 



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STUDY VII 

LAW RELATING TO INFORMATION TECHNOLOGY 

The Information Technology Act, 2000 

( a) It provides legal recognition for transactions carried out by means of electronic data 

interchange and other means of electronic communication, usually referred to, as 

“electronic Commerce”. 

(b) It facilitates the electronic filing of documents with the Government agencies, (and also with 

the publication of rules etc in the electronic form, see Section 8). 

(c) It amends the, Indian Penal Code, the Indian Evidence Act, 1872, the Bankers’ Book Evidence 

Act, 18 91, and the Reserve Bank of India Act, 1934, so as to bring in electronic documentation 

within the purview of the respective enactments 

DIGITAL SIGNATURE 

Digital signature (i.e. authentication of an electronic record by a subscriber, by electronic means) is 

recognised as a valid method of authentication. 

The authentication is to be effected by the use of “asymmetric crypto system and hash function”, 

which envelop and transform electronic record into another electronic record. [Sections 3(1), 3(2)] 

Verification of the electronic record is done by the use of a public key of the subscriber. [Section 

3(3)] The private key and the public key are unique to the subscriber and constitute a functioning 

“key pair”. 

A digital signature is deemed to be a secure digital signature, if, by the application of an agreed 

security procedure, it can be verified that a digital signature, at the time it was verified, - 

(a) was unique to the subscriber affixing it; 

(b) was capable of identifying such subscriber; 

(c) was created in a manner or using a means under the exclusive control of the subscriber and 

is linked to the electronic record to which it relates, in such a manner that if the electronic 

record was altered, the digital signature would be invalidated. (Section 15) 

A system of digital signature of an electronic communication pre-supposes that the sender must 

create a “public -private key” pair. The private key, which is kept confidential, is used by the signer to 

create the digital signature. The public key (which is more widely known), is used by the relying party, 

to verify the digital signature. 

To associate a key pair with a certifying prospective signer, the Certifying Authority issues a 

certificate to the subscriber. [Section 35] 

The Act contains detailed provisions as to “Certifying Authorities” (Sections 17-34). A Certifying 

Authority is expected to reliably identify persons applying for “signature key certificates”, reliably verify 

their legal capacity and confirm the attribution of a public signature key to an identified physical 

person by means of a signature key certificate. To regulate the Certifying Authorities, there is a 

Controller of Certifying Authorities. (Section 17) 

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Foreign Certifying Authorities may be recognised by the Controller. (Section 19) The Controller 

acts as the repository of all Digital Signature Certificates, issued under the Act. [Section 20(1)] 

Section 43 imposes only a liability “to pay damages by way of compensation not exceeding one 

crore rupees”, to the person harmed by the tort. The acts so dealt with, include the following – 

(a) accessing or securing access to the computer network; 

(b) down-loading any data or information from the computer network; 

(c) introducing (or causing to be introduced) any computer contaminant or computer virus, into 

the computer/network; 

(d) damaging (or causing to be damaged) the computer/ network, data, computer data-base or 

any other programmes residing in it; 

(e) disrupting (or causing the disruption of) the computer/network; 

(f) denying access (or causing the denial of access) to any person authorised to access the 

computer/network, by any means; 

(g) providing assistance to any person to facilitate access to the computer network in 

contravention of the provisions of the Act, rules etc. 

(h) charging the service availed of, by a person, to the account of another person, by tampering 

with or manipulating any computer network (Section 43). 

A person failing to provide information or failing to file a return etc. (as required by the Act), has to 

pay a penalty not exceeding ten thousand rupees for every day during which the failure continues. 

(Section 44) 

Contravention of a rule or regulation attracts liability to pay compensation upto 25,000 rupees, to 

the person affected by such contravention or to pay penalty upto that amount. (Section 45) 

Adjudicating officer 

An adjudication officer is to be appointed by the Central Government for adjudging (under this 

Chapter) whether any person has committed a contravention of the Act or of any rule, regulation, 

direction or order issued under the Act. He may impose penalty or award compensation in accordance 

with the provisions of the relevant section (Section 46). 

CYBER REGULATIONS APPELLATE TRIBUNAL 

Chapter 10 of the Act provides for the establishment of one or more Cyber Regulations Appellate 

Tribunal and lays down various provisions regarding its jurisdiction, composition, powers and 

procedure. (Sections 48-62) 

In the same Chapter, there are provisions regarding the compounding of offences and recovery of 

penalties. (Sections 63 and 64). 

Any person aggrieved by an order of the Controller of Certifying Authorities or of the adjudicator 

can appeal to the Cyber Appellate Tribunal, within 45 days. (Section 57) 

OFFENCES 

(a)Tampering with computer source documents; 

(b) Hacking with computer system 



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(i) Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage 

to the public or any person, destroys or deletes or alters any information residing in a 

computer resource or diminishes its value or utility or affects it injuriously by any means, 

commits hacking. 

(ii) Whoever commits hacking, shall be punished with imprisonment upto three years or with fine 

which may extend upto two lakh rupees or with both. (Section 66) 

(c) Publishing of obscene information in electronic form; 

(d) Securing access to any computer, computer system or computer network declared by the 

appropriate Government to be a “protected system”; 

(e) Misrepresentation about a material fact to, or suppression of a material fact from, the 

Controller or the Certifying Authority; 

(f) Breach of confidentiality and privacy, by a person who has, in the exercise of a 

power conferred by the Act, secured access to electronic record, book, register etc.; 

(g) Publishing a digital signature certificate, which is false in certain particulars; 

(h) Knowing, creating, publishing etc. a Digital Signature Certificate, for any fraudulent 

or unlawful purpose. 



STUDY VIII 

THE CODE OF CIVIL PROCEDURE, 1908 (C.P.C.) 

Judgement, Decree and Order 

A "judgement" is the decision of a Court of justice upon the respective rights and claims of the 

parties to an action in a suit submitted to it for determination . 

Decree" is defined in Section 2(2) of the Code as (i) the formal expression of an adjudication which, 

so far as regards the Court expressing it; (ii) conclusively; (iii) determines the rights of the parties; (iv) 

with regard to all or any of the matters in controversy; (v) in the suit and may be either preliminary 

(i.e. when further proceedings have to be taken before disposal of the suit) or final. 

"Order" as set out in Section 2(14) of the Code means the formal expression of any decision of a Civil 

Court which is not a decree. 

JURISDICTION OF COURTS AND VENUE OF SUITS 

(i) jurisdiction over the subject matter 

(ii) Place of suing or territorial jurisdiction 

(iii) Jurisdiction over persons 

(iv) Pecuniary jurisdiction depending on pecuniary value of the suit 

(v) Jurisdiction may be further classified into following categories depending upon their powers: 

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(i) Original Jurisdiction — A Court tries and decides suits filed before it. 

(ii) Appellate Jurisdiction — A Court hears appeals against decisions or decrees passed 

by sub-ordinate Courts. 

Criminal and appellate Jurisdiction — The Supreme Court, the High Courts and the 

District Courts have both original and appellate jurisdiction in various matters. 

Civil Courts have jurisdiction to entertain a suit of civil nature unless barred by law. 

5. The same question is directly and substantially in issue in the latter suit RES 

JUDICATA 

1.The matter must be directly and substantially in issue in two suits; 

2. The prior suit should be between the same parties or persons claiming under them; 

3. The parties should have litigated under the same title; 

4. The court which determined the earlier suit must be competent to try the latter suit; 

Temporary injunction 

IMPORTANT STAGE IN PROCEEDINGS OF A SUIT 

1. INSTITUTION OF SUIT 

The main essentials of the suit are— 

(a) the opposing parties, 

(b) the cause of action, 

(c) the subject matter of the suit, and 

(d) the relief(s) claimed. 

2. . DELIVERY OF SUMMONS BY COURT 

3. Discovery and interrogatories and production of documents 

4.Admission by parties — "Admission" means that one party accepts the case of the other party in 

whole or in part to be true. Admission may be either in pleadings or by answers to interrogatories, by 

agreement of the parties or admission by notice. 

5. Issues — Issues arise when a material proposition of fact or law is affirmed by one party and 

denied by the other. Issues may be either of fact or of law 

6. Hearing and cross examination 

7, Judgement. 

8, Decree 

9. Execution 



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10. Appeals 

REFERENCE, REVIEW AND REVISION 

Reference to High Court 

Review 

SUMMARY PROCEDURE 

Such suit may be instituted by presenting a plaint containing the following essentials: 

(1) a specific averment to the effect that the suit is filed under this order; 

(2) that no relief which does not fall within the ambit of this rule has been claimed; 

(3) the inscription immediately below the number of the suit in the title of the suit that the suit is 

being established under Order 37 of the CPC. 



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Offence 



STUDY IX THE CODE OF CRIMINAL PROCEDURE, 1973 

Section 2(n) of the Cr.P.C. defines the word "offence" to mean any act or ommission made punishable 

by any law for the time being in force and includes any act in respect of which a complaint may be 

made under Section 20 of the Cattle-trespass Act, 1871 

Mens rea 

unless an act is done with a guilty intention, it will not be criminally punishable 

Bailable Offence and Non-bailable Offence 

Cognizable Offence and Non-cognizable Offence 

Stages in a criminal suit 

Complaint 

Bail 

Inquiry 

Investigation 

Judicial Proceeding 

Power of the Court to pass sentences: 

(a) Sentences which High Courts and Sessions Judges may pass 

According to Section 28, a High Court may pass any sentence authorised by law. A Sessions Judge 

or Additional Sessions Judge may pass any sentence authorised by law, but any sentence of death 

passed by any such judge shall be subject to confirmation by the High Court 

(b) Sentences which Magistrates may pass 

(c) Sentence of imprisonment in default of fine 

Section 41 enumerates different categories of cases in which a police officer may arrest a person 

without an order from a Magistrate and without a warrant 

Arrest on refusal to give name and residence 

A private person may arrest or cause to be arrested any person who in his presence commits a nonbailable 

and cognizable offence or who is a proclaimed offender (Section 43). 

Arrest by Magistrate 

Under Section 44 clause (1), the Magistrate has been given power to arrest a person who has 

committed an offence in his presence and also commit him to custody. Under in clause 2, the 

Magistrate has power to arrest a person for which he is competent and has also been authorised to 

issue a warrant 

SUMMONS 

A summon is issued either for appearance or for producing a document or thing which may be issued 

to an accused person or witness. Every summons issued by the Court shall be in writing, in duplicate, 

© GOLS 2011

signed by the Presiding Officer of such Court or by such officer as is authorised by the High Court and 

shall bear the seal of the Court (Section 61) 

WARRANT OF ARREST Every warrant of arrest issued by a Court under this Code shall be in 

writing, signed by the presiding officer of such Court, and shall bear the seal of the Court. Such 

warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. 

(Section 70) 



STUDY X 

LAW RELATING TO RIGHT TO INFORMATION 

Every public authority under the Act has been entrusted with a duty to maintain records and 

publish manuals, rules, regulations, instructions, etc. in its possession as prescribed under the Act. 

[Section 4(1)(a)] 

As per Section 4(1)(b), every public authority has to publish within one hundred and twenty days 

of the enactment of this Act: 

DESIGNATION OF PUBLIC INFORMATION OFFICERS (PIO) 

. REQUEST FOR OBTAINING INFORMATION 

The Act specifies the manner in which requests may be made by a citizen to the authority for 

obtaining the information. It also provides for transferring the request to the other concerned public 

authority who may hold the information. 

—Information to be provided within 30 days. 

—48 hours where life or liberty is involved. 

—35 days where request is given to Asst. PIO. 

—Time taken for calculation and intimation of fees excluded from the time frame. 

—No action on application for 30 days is a deemed refusal. 

. EXEMPTION FROM DISCLOSURE. EXEMPTION FROM DISCLOSURE 

Certain categories of information have been exempted from disclosure under the Act. These are: 

— Where disclosure prejudicially affects the sovereignty and integrity of India, the security, 

strategic, scientific or economic interests of the State, relation with foreign State or lead to 

incitement of an offence; 

— Information which has been expressly forbidden by any court or tribunal or the disclosure of 

which may constitute contempt of court; 

— Where disclosure would cause a breach of privilege of Parliament or the State Legislature; 

— Information including commercial confidence, trade secrets or intellectual property, where 

disclosure would harm competitive position of a third party, or available to a person in his 

fiduciary relationship, unless larger public interest so warrants; 

— Information received in confidence from a foreign government; 

— Information the disclosure of which endangers life or physical safety of any person or 

identifies confidential source of information or assistance; 

— Information that would impede the process of investigation or apprehension or prosecution of 

offenders; 

© GOLS 2011

— Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and 

other officers: 

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on 

the basis of which the decisions were taken shall be made public after the decision has been 

taken, and the matter is complete, or over: 

Provided further that those matters which come under the exemptions specified in this section 

shall not be disclosed; 

Personal information which would cause invasion of the privacy unless larger public interest justifies 

it. (Section 8) 

REJECTION OF REQUEST 

The Public Information Officer has been empowered to reject a request for information where an 

infringement of a copyright subsisting in a person would be involved. (Section 9) 

Under Section 10 of the RTI Act, only that part of the record which does not contain any 

information which is exempt from disclosure and which can reasonably be severed from any part that 

contains exempt information, may be provided 

The Act excludes Central Intelligence and Security agencies specified in the Second Schedule 

like IB, R&AW, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, 

Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier 

Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles 

The Act envisages constitution of Central Information Commission and the State information 

Commissions. 

POWERS OF INFORMATION COMMISSIONS 

Commission has a duty to receive complaints from any person— 

— who has not been able to submit an information request because a PIO has not been 

appointed; 

— who has been refused information that was requested; 

— who has received no response to his/her information request within the specified time limits; 

— who thinks the fees charged are unreasonable; 

— who thinks information given is incomplete or false or misleading; and 

— any other matter relating to obtaining information under this law. 

If the Commission feels satisfied, an enquiry may be initiated and while initiating an enquiry the 

Commission has same powers as vested in a Civil Court. 

The Central Information Commission or the State Information Commission during the inquiry of 

any complaint under this Act may examine any record which is under the control of the public 

authority, and no such record may be withheld from it on any grounds. (Section 18) 

First Appeal: First appeal to the officer senior in rank to the PIO in the concerned Public Authority 

within 30 days from the expiry of the prescribed time limit or from the receipt of the decision (delay 

may be condoned by the Appellate Authority if sufficient cause is shown). 



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Second Appeal: Second appeal to the Central Information Commission or the State Information 

Commission as the case may be, within 90 days of the date on which the decision was given or 

should have been made by the First Appellate Authority (delay may be condoned by the Commission 

if sufficient cause is shown). 

Third Party appeal against PIO's decision must be filed within 30 days before first Appellate 

Authority; and, within 90 days of the decision on the first appeal, before the appropriate Information 

Commission which is the second appellate authority. 

Burden of proving that denial of information was justified lies with the PIO 



© GOLS 2011

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